2017 (6) TMI 656 - HC - Companies Law

Winding up application - Held that - The foundation of the claim of the petitioner to interest is not at all clear at this point of time. In the statutory notice they have mentioned a due date in respect of each invoice and the number of days by which the payment was overdue. The petitioner has calculated interest @ 24% p.a. Whether this rate of interest was agreed upon by the parties or claimed for the first time in the said notice is not disclosed. The petitioner has to produce all this evidence during the final hearing of the winding up petition. At any rate, the rate of interest prima facie appears to be penal. At the moment this court directs that the petitioner shall be entitled to simple interest @7% p.a. under the Sale of Goods Act, 1930 from the respective due dates of the invoices mentioned in the statutory notice dated 12th January, 2016. This winding up application is formally admitted. Direct that the petitioner be advertised once in Times of India, Kolkata Edition and once in Anandabazar Patrika, Kolkata Edition. Publication in the Official Gazette is dispensed with. Direct the advertisement be published by 31st May, 2017. The winding up application be listed as (Company Matter New) on 3rd July, 2017.

Summary

Issues:
Winding up application for admission, High seas sale agreements, Confirmation of account, Statutory notice under Companies Act, 1956, Defence raised by respondent company, Enquiry into alleged acts, Liability of respondent company, Claim of principal sum and interest, Rate of interest claimed, Admission of winding up application.

Analysis:
The petitioner, an importer and domestic supplier, entered into two high seas sale agreements with the respondent company for the sale and delivery of chemicals. The confirmation of account signed by both parties confirmed a substantial amount due to the petitioner for the transactions. The goods were received, accepted, and used by the company without any dispute on quality or quantity.

A statutory notice was issued by the petitioner claiming a principal sum and interest from the respondent company. In response, the company raised a defense alleging involvement of its employees in running a rival business and overcharging. However, the court found this defense baseless as there was no complaint of overcharging previously and the goods were duly supplied and accounted for.

The court rejected the company's defense and held that the petitioner was entitled to the principal sum claimed. However, the claim for interest required further evidence during the final hearing. The court directed the petitioner to be entitled to simple interest at 7% p.a. from the due dates of the invoices mentioned in the statutory notice.

The winding up application was formally admitted by the court, and the petitioner was directed to advertise the same in two newspapers. The publication in the Official Gazette was dispensed with, and the application was listed for further proceedings on a specified date.

In conclusion, the court upheld the petitioner's claim for the principal sum but required further evidence for the interest claimed. The defense raised by the respondent company was deemed unsustainable, leading to the admission of the winding up application for further proceedings.